About Brad Jessup

Brad Jessup joined Melbourne Law School in 2012 from the ANU, where he had been teaching and researching since 2007. From 2001 to 2006 Brad worked in commercial legal practice. Brad’s principal research area is environmental and planning law, particularly the exploration of environmental legal conflict and the regulation of places, landscapes and protected areas.

Australia’s first national laws to put a price on carbon were effective to their end; reportedlyleading to reductions in Australia’s combined greenhouse gas emissions. In their absence it has been reported that increases in emissions have resumed. While our new Prime Minister grapples with how to rein in these emissions, the High Court last year confirmed that the carbon price laws were lawful, and through the prism of the Constitution fair, to their end. The history books will show, however, that politicians failed to make the case for a carbon price law, but they devised and crafted a successful, if complex though geographically unfair, legal policy. Over the past few days the protagonist in the High Court case, Queensland Nickel, with the business faltering, has brought claims of fairness into the political discourse around this business’ carbon intensive operations.

The High Court concluded that the additional financial liability imposed on Queensland Nickel relative to other refineries in Western Australia that triggered the case was not a cause of a difference or discrimination on the grounds of physical or jurisdictional geography but a result of past decisions made by Queensland Nickel on purely financial grounds. The effect of the laws as experienced by Queensland Nickel relative to its Western Australian competitors may have had an increased financial burden on Mr Palmer’s company, which has not been attributed to the company’s financial woes, but that burden was not attributable to the law; rather business decisions made by the company in its infancy.

In the High Court case, Nettle J adopted the plurality view in the Fortescue Metals case, and found that the particular parts of the carbon price regulation that set out liabilities for nickel refineries ‘did not discriminate between States. In terms, it applied equally to eligible persons carrying on the production of nickel regardless of the State of production’ (at [56]). Although Nettle J acknowledged a difference in practical effect of the laws for Queensland Nickel, he considered that ‘in this case it does not appear that any of the differences between the plaintiff’s and the Western Australian nickel producers’ inputs, production processes or outputs were due to differences between Queensland and Western Australia in natural, business or other circumstances’ (at [58]).

Instead, Nettle J focussed on past decisions about mining processes as giving rise to the different effect of the laws. The mining process adopted by Queensland Nickel was found to have been the reason for the greater financial burden under the laws. Although Nettle J conceded that the mining process decision ‘was informed by geographic considerations’ (at [61]), the decisions were ultimately based on delivering to each firm the greatest possible financial windfall at the time the decisions were made in the historical technological settings.

This conclusion, which eschews considerations of the geography of place, effect, and time in preference for considerations of financial autonomy offers an appropriate and consistent ending for the Clean Energy Act 2011, because financial interests trumped geographic interests and fairness throughout its invention, implementation and repeal.

Earlier this month Sir Anthony Mason presented the 21st annual lecture named in his honour at Melbourne Law School and hosted by the Law Students’ Society.

Sir Anthony offered a commentary on contemporary High Court jurisprudence on the relevance of the concept of proportionality in administrative and constitutional law. His focus was on the recent cases of Li, Monis, Unions NSW and Tajjour, which Sir Anthony presented as offering competing perspectives on the place and test for proportionality in Australian law. Sir Anthony did, however, reflect on some of the cases he was involved in from which he traced an historic attention to proportionality by the High Court. These cases included the bicentennial case, Davis v Commonwealth and the refillable bottle case, Castlemaine Tooheys.

Sir Anthony argued that Li represented “a more positive attitude to the use of proportionality” among this Court than past, and he seemingly endorsed the use of proportionality in judicial review to soften the extremely strict standard of Wednesbury unreasonableness.

On the constitutional law freedom of political communication cases of Monis, Unions NSW and Tajjour, Sir Anthony articulated three emergent approaches to proportionality. From Monis, he described Kiefel, Crennan and Bell JJ as grounding an extensive proportionality test (so called ‘structural proportionality’) from European developments. He also distilled competing limited proportionality tests by Gagelar J in Tajjour and by Keane J in the Unions NSW case that would reshape the Lange test for validity of laws that impede political communication if they were to be embraced by the court. As readers of the blog will know from the analysis of Professor Adrienne Stone, how the court resolves its grappling with proportionality might bring clarity to the extent and character of the Australian constitutional freedom of political communication.

In advance of the swearing-in of Michelle Gordon as the 52nd justice of the High Court on 9 June 2016, ABC’s Radio National has spoken about the ceremonial speeches of female judges with ANU’s Heather Roberts. These are events that Dr Roberts describes for the uninitiated as having ‘a bit of a ring of a combination between a eulogy for the living and an Academy Award acceptance speech’. And there are discernible differences in the events and between the speeches given in the past for the inauguration of men and women: one of the central topics of the Radio National program. Continue reading →

The High Court’s decision in Minister for Immigration and Border Protection v SZSCA will be handed down on 12 November 2014. In expectation of the judgment we wanted to share this piece by Melbourne Law School Professorial Fellow and former Dean and current professor at Michigan Law School, James C. Hathaway, on the December 2013 Full Federal Court decision in the case. This post has been republished with permission from Reflaw.

By Professor James C. Hathaway

The Full Federal Court of Australia recently considered the refugee status of an Afghan who had worked for nearly a quarter century as a jewelry maker in Kabul, before deciding in 2007 to work instead as a self-employed truck driver. Initially, his work consisted of transporting such goods as wood, animal skins, and food across the country. But starting in January 2011, he agreed to begin hauling building materials from Kabul to Jaghori in order to supply reconstruction projects being undertaken by the government and international aid agencies. He took on this new work because “he was paid more” [21], noting that “there was not a lot of work and he had to support his family” [22]. When the Taliban threatened to kill him if he continued to transport building materials used in reconstruction, he fled Afghanistan and advanced a refugee claim in Australia.

The claimant reasonably argued that an adverse political opinion had been imputed to him by the Taliban, and that the Afghan government could not be counted on to shield him from the Taliban’s death threats. The Australian government contended, however, that he could avoid the risk by giving up truck driving and returning to his prior career as a jeweler. Counsel for the applicant countered that the applicant could not be compelled to give up his preferred work, and that if that work gave rise to a risk of being persecuted for reasons of an imputed political opinion, his refugee status should be recognized.

The majority of the Full Federal Court of Australia agreed with the applicant. Understanding the High Court of Australia to have ruled in S395 that a decision-maker “cannot require an asylum seeker to behave in a particular manner” [61] – the only relevant question being “whether an asylum seeker would not in fact behave in a particular matter upon his or her return” [61] – it was held that there was a duty to grant refugee status given the applicant’s unwillingness to resume his work as a jeweler in Kabul.

Tasmania’s upper house of Parliament will soon debate proposed laws that create new offences for conducting protests in a manner that disrupt business activities, including conducting protests on business premises or that impede access to the location for business activities.

The Workplaces (Protection from Protestors) Bill 2014 passed the Tasmanian lower house in late June 2014. On 19 August 2014 it was read for the first time in the Tasmanian Legislative Council. The Bill continues to generate protest and opposition from within parliament and beyond. The proposed bill creates new definitions of protest and business that, should the bill pass, will be much analysed by judges. However, as Melbourne Law School’s Professor Adrienne Stone has noted, the law may ultimately be subject to a constitutional challenge on the ground that it is inconsistent with the implied constitutional freedom of political communication. The limitation on protestors might be unreasonable or disproportionate to the desired purpose of the law – to protect businesses from disruption. Should a challenge to the law be brought before the High Court, it will add to the opportunities presented to the court last year in the cases of Monisand Corneloup and already this year in the Unions NSW case to develop jurisprudence on the implied freedom.

On behalf of the Opinions on High team I offer our condolences and sympathy to Leslie’s family and share the sadness experienced by all those who got to know Leslie during his life. Leslie’s life was marked by achievement, dedication and generosity. Geoffrey Lindell offered a glimpse of these markers in his 2010 Federal Law Review reflection on his relationship with Leslie.

Leslie’s scholarship focussed on relationships within the federal domain and his personality and personability meant that he readily built relationships within the ANU College of Law, where he dedicated much of his working life. It was there where I met Leslie and shared a law school corridor for five years. This was a time when he was nearing the end of his career at the university and I was starting mine. His reputation as a highly esteemed scholar and intellect, something I had gleaned from his involvement in and writing about the Tasmanian Dam case (which I continue to use in my teaching), preceded him. Despite this, Leslie was accessible, friendly and generous with his wisdom and laughter. That is how I will remember him.

We have recently passed the 20 year anniversary of the High Court’s decision in Burnie Port Authority v General Jones Pty Ltd[1994] HCA 13 (24 March 1994). However, the judgment is still subject to debate. Our current exploitation of land for natural resources has encouraged further consideration of this High Court decision. Continue reading →

On 12 December 2013 the High Court revealed its decision in Commonwealth v Australian Capital Territory[2013] HCA 55 (Same Sex Marriage case) on the Commonwealth’s challenge to the Marriage Equality (Same Sex) Act 2013 (ACT), and at the same time it reduced the possibilities for other state and territory proposals for so-called ‘marriage equality laws’.

This blog post presents an alternative way of understanding the case and judgment in the Same Sex Marriage case. I use my interests in the case, my background exposure to the jurisprudence of same sex marriage, and my experiences following the decisions of the High Court of Australia throughout 2013 as an editor of the Opinions on High blog to support my autoethnographic analysis.

I will try to articulate why, despite being reluctant to engage with the issue of same sex marriage for so long, I was surprised and hurt when I learnt of the decision of the High Court.

My scholarly interests remained elsewhere. Others had been productive, provocative and persuasive in the space. This was so especially following the passage of the Marriage Amendment Act 2004 (Cth), which asserted the federal Parliament’s intent that marriage be a union of a woman and a man. Moreover, I had ‘troubles’ with marriage; let alone ‘gay marriage’, as an exclusionary, archaic institution. Nevertheless, I was not entirely agnostic. I had responded to queries from curious friends about the requirement of celebrants to pronounce the meaning of marriage at their weddings. I also became intrigued by the constitutional, and more so the geographical and sociological, battles over same sex marriage within the States of the US. Continue reading →

The Hon Michael Kirby’s High Court career (from 1996 to 2009) has been bookended by inquiries undertaken for the United Nations High Commissioner for Human Rights into human rights initiatives and abuses of foreign states: milestones that underscore his commitment to and involvement in United Nations bodies particularly related to AIDS and human rights. In 1996 he reported for the final time on recommendations for a human rights based governance model for Cambodia, then emerging from years of conflict and human rights abuse. His focus then was to ensure that a new government created a political and legal regime that protected internationally recognised human rights. This week a report authored by former Justice Kirby was released that detailed the current and historic widespread human rights abuses committed by the government of North Korea against its own people. Kirby concluded that the abuses and crimes against humanity were perpetrated by the government, institutions and policies of the state. Continue reading →

In all the excitement within segments of the community over the passage of the ACT’s MarriageEquality (Same Sex) Act 2013 (ACT) there has been little critical consideration of the implications of the final changes made to the Bill that were introduced purportedly in order to further protect the laws against a High Court challenge by the Commonwealth government. The implications of those changes will be brought into view when the High Court decides whether to grant leave to appeal Norrie’s case (reported about here) on 8 November 2013. Continue reading →

Over the weekend ABC’s Landline broadcast a story about the circumstances leading to the closure of a rural Victorian abattoir, in particular the role of the State authority PrimeSafe and the economic harm caused by the closure to small agribusinesses in the surrounding district. The premise for closing the abattoir was that animals were being treated cruelly. However, cruelty was never proven against the business. I was asked to offer a view about the potential causes of action that the Giles family that owned the abattoir might have against PrimeSafe to recover losses arising from their lost business.

I note (at about 40 minutes) that there are two possible causes of action available to the owners of the abattoir business: negligence and public misfeasance. Continue reading →

The ACT government has introduced a bill into the ACT Legislative Assembly that proposes to create a new species of marriage in Australia. Almost instantly the prospect of the federal government taking action to overturn the law once it comes into effect was the subject of news attention. The constitutionally-minded turned their attention to the possibility and prospects of the High Court being called upon to determine the validity of this new form of marriage. See comments by Professor George Williams (also here) and Crispin Hull. We have previously noted that the ACT’s proposed laws depends on advice received from High Court Justice Gageler before he took on his current role. Continue reading →

Next week is the final week of the 2013 federal election campaign. It has been a campaign where immigration issues have been prominent despite the Rudd government attempting to neutralise the politics of irregular migration by entering into the highly publicised arrangement with Papua New Guinea for that country to detain asylum seekers and settle refugees who arrive in Australia by sea. While other matters of policy and electioneering might occupy news bulletins next week, irregular migration and refugee laws will be front and centre before the High Court. Continue reading →

Same sex marriage has appeared again in the news recently. However, this time with a decidedly constitutional bent. The NSW Standing Committee on Social Issues tabled its report on a possible same-sex marriage law in New South Wales on 26 July 2013. Continue reading →

If you are employed on probation then you typically will not have the benefit of unfair dismissal laws. This is because probation periods are usually no more than six months – and parliamentarians have decided that this is a reasonable time within which employers can decide whether or not they should keep an employee on the job. However, some workers have much longer probationary periods. David Eaton, a former police officer from New South Wales, had an indefinite probationary period. That is, there was no end to his probationary period. He would stay on probation until his supervisors promoted him or, as happened in this case, they sacked him.

In the recent High Court case of Commissioner of Police v Eaton [2013] HCA 2 the Court provided some insights into the nature of probationary employment, highlighting the insecure nature of that stage of employment, particularly for police officers. The Court also commented on the implications of employers having an “unfettered power” to dismiss their employees. In reaching their decisions the judges relied on some different, and incompatible and incomplete, approaches to interpreting legislation. This suggests that there are disagreements within the Court on how to tackle the task of giving meaning to statutes. Continue reading →